If FDA permits terms such as almondmilk, its standards of identity are 'meaningless,' says NMPF

By Elaine Watson+Elaine WATSON30-Aug-20172017-08-30T00:00:00ZLast updated on 31-Aug-2017 at 11:51 GMT2017-08-31T11:51:30Z

If the FDA were to give a formal seal of approval to terms such as ‘almondmilk’ and ‘vegan cheese,’ it would render federal standards of identity “totally meaningless,” argues the National Milk Producers Federation (NMPF) in comments responding to a citizen’s petition filed by the Good Food Institute (GFI).

In its 20-page commenton the GFI petition (which was filed in March), the NMPF argues that many brands are already flagrantly violating standards of identity while the FDA turns a blind eye:

“The current marketplace is characterized by an ‘anything goes’ attitude, where misbranding and mislabeling run rampant, and consumers are consistently short-changed through the purchase of products bearing nomenclature that deceptively promises a certain level of nutrients to be expected with terms like ‘milk,’ ‘cheese’ and ‘yogurt,’ but in reality delivers far less.”

The NMPF also stresses that the issue is primarily one of nutritional equivalency, not whether shoppers think almond milk actually comes from cows (they don’t): “What is completely misleading to the public is the inherent suggestion by the use of word ‘milk’ in these products’ names that they have comparable nutritional and food values to those of dairy milk…

"Preventing such marketplace practices is one of the primary reasons for the existence of food standards of identity.”

It goes on to cite Mintel data indicating that significant numbers of consumers are laboring under the misapprehension that milk alternatives are not just nutritionally equivalent to, but superior to, dairy milk.

NMPF: Pressure is mounting on FDA to act

But will the FDA take any notice?

NMPF SVP communications Chris Galen acknowledged that the FDA has not given any indication that it intends to address the plant ‘milk’ debate any time soon, having failed to respond to petitions* filed years earlier on the same topic. But pressure is nevertheless mounting on the agency to act from all sides, he told FoodNavigator-USA.

“We recently met with FDA to reinforce our stance, and ask the agency to finally step up and take enforcement action. We didn’t receive any indication they will do so in the near term, but we did reiterate the point that we are not going to stop asking them to enforce standards of identity. Hence our comments today on the GFI petition.”

And while the courts have not generally been sympathetic to false advertising lawsuits alleging consumers are confused by terms such as soymilk, a California judge handling one such case** vs Whitewave Foods recently said the plant 'milk' issue fell “squarely” within FDA’s authority, putting pressure on the agency to weigh in.

After staying the Whitewave case on primary jurisdiction grounds, judge Lawrence O'Neill added: “This court is not the appropriate forum to decide in the first instance whether almondmilk 'substitutes for,' is 'nutritionally inferior' to, and 'resembles' dairy milk such that it should be labeled 'imitation' milk under § 101.3(e)—an issue which forms the entire basis for plaintiff’s case.”

Was the FDA effectively saying that as long as you include a disclaimer (egg-free/dairy-free) prominently on the label (just as Muscle Milk ‘contains no milk’ and is 'non-dairy') and employ other tactics (words, imagery etc) to ensure that shoppers could be under no illusions about what you’re selling (eg. you’re not being false and misleading), you are OK?

This certainly appears to be how federal judges handling civil lawsuits over plant ‘milk’ vs White Wave Foods and Trader Joe’s (click HERE ) appeared to interpret the law, with US district judge Vince Chhabria noting that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question.

GFI: Consumers know and understand terms such as almond milk

According to the GFI’s petition, terms such as soy milk, coconut milk, and almond milk are now “as familiar and clear to consumers as rye bread, rice noodles, or cashew butter.”

Courts handling false advertising cases over plant ‘milks’ have also pointed out that the federal standard of identity for ‘milk’ - which limits it to lacteal secretions from cows - does not categorically preclude a company from giving food products names that include the word ‘milk,’ added the GFI.

For example, in a case vs Trader Joe’s***, judge Vince Chhabria noted that the word ‘soy’ before ‘milk’ cleared up any confusion as to the contents of the package in question: “Trader Joe's has not, by calling its products ‘soymilk,’ attempted to pass off those products as the food that the FDA has standardized (that is, milk).”

As for nutritional equivalency, meanwhile, Stephen Wilson, the judge handling a false advertising case**** vs Blue Diamond Growers (Almond Breeze) in California, did not buy the argument that the word ‘milk’ came with a certain set of nutritional expectations, adding: “If the consumer is concerned about the nutritious qualities of the product, they can read the nutrition label…”

*The FDA is required to respond to citizen’s petitions within 180 days, but often does so with an acknowledgement, rather than a considered response, and can cite competing priorities for failing to come to a firm conclusion.

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